Interference 104,066
The claims of the parties which correspond to the count are:
Lee: Claims 1-6
Vogelstein: Claims 1-3 and 8-23
Both parties filed briefs and were represented by counsel at final hearing.
III. Issues
The sole issue in this interference is whether there is an interference-in-fact
between the parties. Lee Belated Motion No. 1 (Paper No. 56).
IV. Decision on Motion
As a preliminary matter, we point out that the merits panel’s review at final
hearing of a substantive decision by a single APJ granting or denying a preliminary
motion is performed without giving deference to the decision of the single APJ on fact
or legal issues. 37 C.F.R. § 1.655(a).4
We further point out that this panel will consider only those issues which were
properly raised in timely-filed motions and oppositions. 37 C.F.R. § 1.655(b). Review
of a decision on a preliminary motion at final hearing is not a tool which a party can
employ to reopen prosecution and present new arguments. The interference rules
state that if an issue could have been raised in a preliminary motion and was not-- a
party is not entitled to raise the issue at final hearing. 37 C.F.R. § 1.655(b). The rules
4 In 1999, § 1.655(a) was amended to afford a full hearing of any properly-raised,
dispositive issue by a three-judge panel and, thus, now provides “the public with more
certainty as to how matters will be considered... [and] make[s] practice within the Board
more uniform.” Interim Rule, 37 C.F.R. § 1.655(a), 64 Federal Register 12900, 12901
(1999).
4
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